Tag: oregon court of appeals

Physician wins! Oregon Court of Appeals reverses Medical Board

This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missappliation of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, __ Or App __ (August 3, 2016) (remanding for further proceedings).

Appeals against the Oregon Medical Board are difficult to win

On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.

This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.

The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure

The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:

“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”

See Yankee v. Oregon Medical Board, __ Or App __, __ (August 3, 2016) (underscore added).

I want to appeal – How long will it take?

Good question. Appeals are a slow process, with flurries of activity followed by periods of inactivity.

The typical progression of an appeal in the Oregon Court of Appeals

If you are the appellant taking an appeal to the Oregon Court of Appeals, the flurries of activity include the following:

  • preparation and filing of the notice of appeal
  • preparation and filing of a cost bond (or cash deposit) into the trial court
  • preparation and filing of a supersedeas bond, or “stay bond,” to stop execution of the trial court’s judgment
  • preparation and filing of the trial court’s transcript of proceedings
  • correction of the transcript, if necessary
  • preparation and filing of the opening brief on appeal
  • preparation and filing of the reply brief on appeal
  • preparation and attendance at oral argument.

The work itemized above is necessary for basic appeals, and it will take about a year for both parties complete all that is to be done.

Occasionally, other work may be necessary. For example, there may be a cross-appeal, requiring another round of briefing. Or there may be two appeals, that the parties will want to consolidate, by filing a motion to consolidate, and then waiting for a ruling from the Court of Appeals. Or it may be discovered that the trial court is missing part of the record, making it necessary for the Court of Appeals to “remand” (return) the case to trial court so that the parties and the trial court may correct the record. Or there may be a jurisdictional issue that will interrupt the flow of work while parties brief the issue and the Court of Appeals decides the issue. Or it may be necessary to file part of the record under seal, in order to protect the privacy of minors or patients. All of this will take additional time. One of these issues may take two-to-three months to resolve. If two or more of these issues are present, an appeal may take an additional six months to conclude. In the end, an appeal having moderate complexity may consume 1-1/2 years before the briefing is complete and the case is waiting to be argued to the Court of Appeals.

How long to oral argument?

After so much work, the next question often asked is, how long before oral argument? I checked my last three cases and found that oral argument was heard, on average, six months after the briefing was complete. One case took five months from the completion of the briefing to oral argument, the second case took nine months, and the third case took four months. The delay in getting to oral argument is a function of the Court of Appeals’ backlog of cases. As you can see, an appeal having moderate complexity may consume 1-1/2 years to complete the briefing, and take another six months to get to oral argument, two years total.

How long before the Court of Appeals decides my appeal?

The next question is often, how long before the Court of Appeals will decide my case? The answer may surprise you. If you are the appellant, you do not want a quick decision, because cases on appeal can be lost quickly – in one to two months – while winning takes time. If you are the appellant, winning takes time because the Court of Appeals must write and publish a decision reversing the lower trial court, a time-consuming process. For this reason, when I represent the appellant, I am always pleased when two or more months have passed and nothing is heard from the Court of Appeals. I am even more pleased when the Court of Appeals’ decision has been pending four months or longer. The court may still deny your appeal, but at least the time-to-decision suggests that the denial was not easily decided. In my experience, the longer the Court of Appeals takes to reach a decision, the better the odds of a favorable result.

How long overall?

As you can now see, appeals are a slow process, comprised of flurries of activity followed by periods of inactivity. The numerous periods of activity are spent waiting on the other side, or waiting on the Court. A basic appeal might take 1-1/2 years from start to finish, before the case is argued and decided, while a more complicated appeal, requiring “motion practice” to resolve one or more issues, may take 2-1/2 years from start to finish, before the case is argued and decided.

In my next post, I will discuss the several opportunities a lawyer can exploit to expedite an appeal, saving much time, and some expense.

 

Eleven recommendations for oral argument

A trial lawyer I assisted with an appeal wanted to argue his case to the Oregon Court of Appeals and asked me for whatever advice I might provide to him. What follows is my answer – eleven recommendations for oral argument – intended for his use, in that case, that day, before the Oregon Court of Appeals. This list is not intended to the best list, or the most comprehensive list, or to apply to every appellate court. It is simply the advice I gave one trial lawyer on how to argue an appeal to the Oregon Court of Appeals. Here it is:

  1. Read Chapter 6 of the Oregon Rules of Appellate Procedure generally, paying close attention to Rule 6.15 specifically (Procedure at Oral Argument).
  2. Know your panel. The judges sitting for the Oregon Court of Appeals are organized into four panels, or “departments.” Check the argument calendar to learn the make up of the three judge panel that will hear your case. Determine whether any of the judges on your panel wrote or participated in one for the opinions upon which you rely? If so, study that opinion with the specific judge(s) in mind.
  3. Be timely. Arrive at the start of each session, and know what to expect. Check the argument calendar the day before argument, to verify when your case will be called. Caveat: Even if you are the last argument of the morning or afternoon session, show up on time for the first argument of the session. Some cases are dismissed, some arguments are waived, and if one party is late, the court may take cases out of order. This is why the court expects everyone to be present at the start of the morning or afternoon session.
  4. Check in with the clerk. When you arrive at the courtroom, check in with the clerk (seated to the left as you enter the courtroom) by handing the clerk your business card and advising him or her which party you represent. The clerk will note your arrival and usually hand your card back. If you are permitted to make a reply argument, reserve reply time with the clerk at the same time you check in. See Rule 6.15. It is my practice to reserve the maximum reply time allowed, because it is during the reply argument that I get to the answer the bulk of the court’s questions, plus whatever argument the respondent just made. Take a seat anywhere in the back, until your case is called, and then move up to counsel.
  5. Introduce yourself to the court properly. Because you are the appellant, you will argue first, and last, if you reserve time to reply. See Rule 6.15. Introduce yourself to the court first, by saying, “May it please the court, my name is so-and-so, appearing on behalf of . . . .” Do not tell a joke, and do not be folksy; it never works. Never read anything unless it is a highly specific quote from the record or a legal authority. If you read too much, the court will interrupt you, and it happens very quickly. When your time is up, quickly wrap up your argument and sit down.
  6. Remember, questions are a good thing. Questions from the bench are a good thing because whatever the court questions you about is what interests or troubles the court. I therefore believe the sooner a question comes, the better. And if there are few questions, or heaven forbid, no questions, it is because one side has already won or lost the case. When this happens, hopefully it is not a surprise, but it will not happen to you in this case. Don’t worry.
  7. Answer questions straight up. Appellate judges are focused on threshold questions that may dispose of a case quickly. You are not going to trick the court. Answer any question directly, and then explain the answer, but never go outside the record. If necessary, tell the court you could answer the question but it would be necessary to go outside the record. The court will say “thank you, no.”
  8. What to do if you do not know the answer. Occasionally the court will ask a question not anticipated by the parties in the briefing. If you don’t know the answer, say so, and offer to provide the court with a short, two-page supplemental memorandum, if it seems appropriate to do so. The court rarely accepts such offers.
  9. Concede points that are difficult but not necessary to your position, but don’t concede points that concede your case. Sometimes a judge will say something like, “If we find so-and-so, you lose, right?” The answer must be either, “Yes, but the court shouldn’t find so-and-so because . . . ,” or, “No, your honor, if you find so-and-so, we still win because . . . .”
  10. If it is your first time to the court of appeals, observe one or two arguments before your argument, even if you have to attend another day to do so. Although I have attended many oral arguments, I still prefer to be second on the argument calendar so that I may observe one argument to get “the tempo” of the panel that day.
  11. Parking. There is usually plenty of adequate parking right outside the main doors to the Supreme Court building and, as of November 2015, the coin-fed parking meetings have been replaced. You no longer need to bring a stash of quarters – you can now pay by debit or credit card!